1. The Appeals Chamber of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 ("International Tribunal") is seised of
appeals, filed by both the Prosecution and the Appellant
Brdjanin, from the Judgement rendered in this case
by Trial Chamber II on 1 September 2004 ("Judgement").

2. Ground I of the Prosecutionís
Appeal concerned the question whether the membership
of a joint criminal enterprise must include the physical
perpetrators of the crime. Brdjanin moved to dismiss
this ground of appeal on the basis, inter alia,
that the Prosecution did not seek alteration of the
judgement on this ground and that the question therefore
would not be subject to genuine adversarial debate.
On 5 May 2005, the Appeals Chamber denied Brdjaninís
motion, accepting the Prosecutionís suggestion that
the problem of lack of an adversarial process could
be remedied to some extent by inviting an amicus
curiae brief from the Association of Defence Counsel
of the International Tribunal ("Association"). The
Appeals Chamber asked the Association to submit such
a brief within 30 days, by 4 June 2005.1

3. On 2 June 2005, the Association
moved for an extension of this deadline to 5 July
2005 on the grounds of delay in approval of funding
for the brief by the Registry of the International
Tribunal and the need to communicate with far-flung
members of the Association to ensure that the brief
accurately reflected a consensus of their views.2
Because the 4 June deadline was imminent, the Pre-Appeal
Judge issued a Decision granting the motion on 3 June
2005.3 Later on the same
day, the Prosecution timely filed its Response to
the Associationís motion.4

DISCUSSION

4. The Appeals Chamber does not find
that the Prosecutionís Response provides any reason
to alter the Pre-Appeal Judgeís Decision granting
the Associationís motion for an extensionóindeed,
the Prosecution does not oppose the extension.5
However, the Response does raise the valid point that
the Prosecution should be permitted to reply to the
Associationís arguments.6
Although ordinarily the place to respond to amicus
curiae arguments, if a party so chooses, is in
the course of the ordinary briefing, here the briefing
concerning the Prosecutionís appeal is already complete,
the Prosecution having filed its Brief in Reply on
25 May 2005. The Appeals Chamber therefore finds that
a short supplementary brief is appropriate, noting
that such a brief will serve the Appeals Chamberís
objective of encouraging a full adversarial process
on this important issue.

5. The other contentions in the Prosecutionís
Response are without merit. First, the Prosecution
suggests that the Appeals Chamber reconsider its decision
to invite the amicus brief in the first place
(an invitation that, it bears repeating, was originally
suggested by the Prosecution), noting that Brdjanin
has chosen, after all, to address Ground I of the
Prosecutorís Appeal in his Response Brief.7
But the fact that the disinterested defendant chose
to include a brief discussion of an issue that he
had no incentive to research or argue thoroughly does
not obviate the benefits to the Appeals Chamber of
having the considered views of the Association on
an issue thatóas the Prosecution itself strenuously
arguedóis of great significance to this Tribunalís
jurisprudence. Moreover, it would be disrespectful
to amicus curiae, and the work already invested
in its brief,to revoke the Tribunalís invitation
at this stage.

6. Second, the Prosecution asserts
that it "would appear . . . that the Association of
Defence Counsel rather than preparing an amicus
curiae brief is preparing a brief in response
to the Prosecutionís Appeal brief."8
But the Prosecution provides no support for this assertion,
nor is any found in the Associationís Motion. The
Appeals Chamber was clear in requesting a brief limited
to the JCE membership issue, not other issues relevant
to the Prosecutionís appeal. Provided that the Associationís
brief is so limited, the Appeals Chamber has no difficulty
with the possibility that the brief will reflect the
interests of the Associationís clients. That, indeed,
is the very reason the Prosecution originally suggested
that the Appeals Chamber should invite the Associationís
views: to get the "perspective of the defence."9

DISPOSITION

It is hereby ORDERED that
the Prosecution file its Brief in Reply to the Associationís
amicus curiae brief within 15 days of the filing
of that brief. The Brief in Reply is to be no more
than ten pages in length.

Done in French and English, the English
version being authoritative.

____________________________
Judge Theodor Meron
Presiding

Dated 9 June 2005
At The Hague
The Netherlands

[Seal of the International Tribunal]

1. See Decision
on Motion to Dismiss Ground 1 of the Prosecutorís Appeal,
5 May 2005 (recounting this procedural history).
2. Association of Defence Counselís Motion for an Extension
of Time, 2 June 2005.
3. Decision on Association of Defence Counselís Motion
for an Extension of Time, 3 June 2005.
4. Response to Association of Defence Counselís Motion
for Extension of Time, 3 June 2005.
5. Id. at para. 3.
6. Id. at para. 8.
7. Id. at para. 6.
8. Id. at para. 7.
9. Prosecution Response to Motion to Dismiss Ground
1 of the Prosecutorís Appeal, 4 March 2005, para. 17.